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The planning system: not out of the Human Rights woods yet?

David Hart QC

New Law Journal, April 2001

David Hart reflects on the implications of the Alconbury decisions for planning lawyers

Planning lawyers itching to deploy their gleaming new human rights armoury may be forgiven for thinking that the House of Lords' decision in the Alconbury cases (NLJ Law Reports May 18, 2001, pp 727-728) has spoilt their fun. But before they decide to set aside the learning gained from all those expensive seminars, it is as well to reflect on the implications of this decision—seminal not only for planners but for all those interested in how post-Human Rights Act courts would seek to police the border zones between their territory and that of Parliament.(1)

The Decision

First, the original decision against which the appeal was brought. The call-in, recovered appeals and compulsory purchase procedures under challenge consisted of three components: (i) a public inquiry with oral evidence; (ii) an opportunity for policy input by the Department of Environment, Transport and the Regions ("DETR"); and then (iii) a statutory appeal or judicial review available to those aggrieved. The Divisional Court held that the potential distortions introduced by (ii), and which prevented the DETR as decision-maker from being "independent and impartial" within the meaning of Art 6(1) of the European Convention, could not be cured by (iii). In European Court of Human Rights terms, if an administrative decision-making process did not itself contain all the elements required by Art 6(1) of the Convention, it did require subsequent control by a judicial body with "full jurisdiction" which was fully Art 6(1) compliant—and, said the Divisional Court, judicial review and its statutory equivalent did not have full jurisdiction.

The challengers encountered considerably stonier ground when the Secretary of State for the Environment, Transport and the Regions ("SSETR") and his allies reached the House of Lords. The House of Lords acknowledged, as did the DETR, that the SSETR was not independent and impartial. But the "distortions" from policy input were nothing of the sort; it was "absurd"(2) to think that the SSETR would ignore his policies and start the decision-making process with an open mind. A judicial review court had full jurisdiction on all issues upon which it was necessary and indeed right for a court to interfere—and those issues expressly did not and should not include policy issues.

The ECtHR case law

In so doing, the House of Lords gave a valuable review of how the European Court of Human Rights reached its present position on matters amounting to "civil rights and obligations" within Art 6(1), valuable not least because the ECtHR has not itself carried out such a sustained analysis of the various strands of reasoning which inhabit this area. The Lords pointed out that, whilst the original intention of the words in the Convention may have been to exclude consideration of administrative decision-making altogether, the ECtHR had as early as 19713 decided that an administrative process could be decisive of civil rights and obligations, even though its primary task was not to adjudicate between them. But as part of that accommodation between administrative and judicial processes, non-compliance in the administrative process was held by the European Court to be curable by judicial review.

Despite being tempted by the prospect of revisionism when confronted with the "tortuous"(4) route pursued by the ECtHR, the House of Lords obediently observed its Section 2 HRA obligations to "take into account" Strasbourg learning in following this line of cases.

The next important step in the case law was the arrival of the principle that the review court should have "full jurisdiction" in the medical disciplinary case of Lecompte et al v Belgium.(5) But what does "full" mean in the context of a decision which is part factual and part policy?

Policy and fact

In any planning adjudication, the decision-maker inevitably decides factual issues and policy issues and, most commonly, applies policy to decided fact. The House of Lords decided that certain bits of this process, namely articulation and application of the policy, were no-go areas for the courts. They did so on a sound basis in the ECHR learning. Interestingly, similar results are arrived at in domestic tort cases, where the courts are wary of deciding issues against public authority defendants where the underlying issue is one of resources—should the accident have been prevented by more ratepayers' money being spent on highway measures?(6) They equally recognised that gross misunderstanding or misapplication of the policy could be reviewed by the courts.

As for decisions on the facts, a different set of principles would then come into play. The judicial review court could interfere if the decision was perverse or irrational or disproportionate, or proceeded on a misunderstanding or ignorance of an established fact. Thus judicial review was sufficient for the factual elements which should properly be decided by the courts.

Professor Ian Loveland ("Comment" NLJ May 18, 2001, p 713) has cast doubt upon any rigid distinction between policy and fact as it emerges in the typical planning case. This must be right, but if, as I believe, there must be some respect for the statutory, and hence theoretically democratic, dispensation that most if not all planning policy is for central Government, then the difficulty in filleting away policy from the facts must and should be an inevitable consequence of any such challenge.

A telling point in the speeches in the House of Lords is when the spotlight turned upon what the challengers said ought to happen, if—as was entailed by their case—the SSETR did not decide in call-in cases. As Lord Clyde(7) pointed out, the response was that:

"Cases … which are likely to give rise to issues of widespread or even national concern, which may well have a wide impact on the lives of many and involve major issues of policy … should be removed from the Minister, who is answerable to Parliament, to an independent body, answerable to no one."

If such an alternative unanswerable tribunal was not to be constituted, then, to my mind, the far less desirable outcome would occur, namely that these issues of general importance would be decided by local planning authorities without a full inquiry and without the rights of public participation to which any inquiry precipitated by a call-in would lead.

Implications

Many of the implications of the decision will be obvious. Systematic condemnations of the DETR's policy-led process are doomed, nor must the potency of present day judicial review be underrated in any similar challenge. A similar all-clear goes out to the typical compulsory purchase decision, where the interest of the affected landowner is weighed against the general public interest in the scheme.

So any Art 6(1) challenge in a planning case which stands a chance of success must move from the general to the particular. And the most obvious area, in my view, for this scrutiny is the case expressly not covered by this decision, namely the typical decision by a local planning authority. Contrast the safeguards between such a decision on an ordinary planning application (circa 500,000 a year) and the procedure as summarised by the House of Lords when a called-in inquiry (circa 130 a year) comes before an inspector. In the former, unlike the latter, there is no opportunity to call oral evidence, cross-examine, or indeed to demand a sufficient oral hearing or obtain reasons. The opportunity for preparation in response to any such application is very limited by time constraints. It is true that many of these decisions will quite properly turn out to be non-reviewable decisions on policy and its application—should the village expand to accommodate one more "modest" development? To what extent are employment prospects arising out of the development to be weighed against prevalent NIMBY-ism?

On the other hand, many decisions will depend on crucial factual issues, upon which fairness may dictate that current procedure is inadequate—what noise does the applicant workshop owner in fact currently make before he seeks a doubling of his woodworking machines? To what extent are local residents in fact affected by traffic movements before production is doubled?

The crucial Art 6(1) clash may arise therefore when an objector faces the prospect of challenging the grant of planning permission when he seeks a factually based judicial review without reasons, or at best, with the benefit of the committee's endorsement of the planning officer's summary recommendations. The limit of the committee's decision on difficult factual issues may be: "We have considered the material submitted by the objector, but prefer the material submitted by the applicant." However inadequate this procedure may be, the resultant decision may be difficult to review without some assistance from Art 6(1).

In such territory, we are far away from the objector (legally represented, if money allows) appearing before the called-in inquiry with (relatively speaking) carte blanche to explore any factual issue by evidence or questioning. The objector's rights to intervene before the original decision is made, and, if not permitted to do so, his rights to complain of such an Art 6(1) infringement on review, will relate more closely to traditional principles of fairness or natural justice. But those principles are considerably fortified by the Art 6(1) safeguards that if (as it often will be) a decision is decisive of private rights of neighbours then the process, when coupled with judicial review, must be compliant.

The outcome—more a result of well-established Strasbourg case law than this recent decision from Westminster—will strike the average planning department of a district council as curious. When it decides against an application for planning consent, it is well aware that the aggrieved can and often will appeal. On such an appeal, objectors can, in practice, intervene without objection from applicant or inspector. Contrast the decision-making process when faced with a cogent objection, but when the planning officer is inclined to recommend grant. Some may think that the officer, fully equipped with the latest pronouncement from the Administrative Court on the ambit of judicial review, will in theory be obliged to give a view on what procedure is required before his committee reaches its decision, so as to enable his council to assert that the combination of local and judicial processes are sufficient for Art 6(1) purposes. Many may regard this as entirely unrepresentative of local Government in practice.

Wider implications

The views of the House of Lords are expressed in the context of this Art 6(1) challenge to specific planning, compulsory purchase and highways procedures. But, as the Committee was well aware, its decision was "of great practical importance and constitutional importance for this country, and of importance for the development of human rights law both in this country and abroad", as Lord Nolan put it.(8)

The obvious application of the decision outside the Art 6(1) territory is to any case—typically under Art 8 of the Convention protecting private, family and home life—where the balance is to be struck between an affected applicant and a respondent whose response to the planning or environmental threat has been impaired by lack of resources. A typical example might be a regulator deciding whether he is obliged to bring enforcement proceedings against a licensee, knowing that those proceedings carry some prospects of success but equally will be bitterly contested by the licensee company.

A (democratically elected or endorsed) respondent will be able to contend with some force that there is indeed an area free from challenge which must remain so if impermissible encroachment by human rights lawyers is not to occur. For my part, I welcome this identification of an important line of demarcation between Parliament and the Executive as against the HRA-equipped judiciary. I trust I am not over-optimistic in considering that the courts, including the House of Lords, will scrutinise rigorously all attempts by respondents to stray impermissibly into human rights territory.

David Hart is a barrister at 1 Crown Office Row specialising in environmental law. He has written and lectured widely on human rights and environmental law

1 Leading to a skirmish the results of which are well encapsulated by Lord Hoffmann thus: "The Human Rights Act 1998 was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers."